Rasul v. Myers

• Decision Date: 11 January 2008
• Docket Number: No. 06-5209.,No. 06-5222.,06-5209.,06-5222.
• Citation: 512 F.3d 644
• Parties: Shafiq RASUL et al., Appellants/Cross-Appellees v. Richard MYERS, Air Force General et al., Appellees/Cross-Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

512 F.3d 644

Shafiq RASUL et al., Appellants/Cross-Appellees v. Richard MYERS, Air Force General et al., Appellees/Cross-Appellants.

No. 06-5209.

No. 06-5222.

United States Court of Appeals, District of Columbia Circuit.

Argued September 14, 2007.

Decided January 11, 2008.

Appeals from the United States District Court for the District of Columbia (No. 04cv01864).

Eric L. Lewis argued the cause for the appellants/cross-appellees. A. Katherine Toomey, Sarah L. Knapp, Elizabeth A. Wilson, Michael Ratner, Jennifer M. Green and Shayana Kadidal were on brief.

Sidney S. Rosdeitcher was on brief for amici curiae National Institute of Military Justice et al. in support of the appellants.

William J. Aceves and Paul Hoffman were on brief for amid curiae International Law. Scholars and Human. Rights Organization in support of the appellants.

Stephen M. Truitt and Michael Rapkin were on brief for amici curiae Counsel for Guantanamo Detainees et al. in support of the appellants.

Jerome A. Hoffman and Christopher C. Lund were on the brief for amid curiae National Association of Evangelicals et al. in support of the cross-appellees.

Jonathan F. Cohn, Deputy Assistant Attorney General, United States Department of Justice, argued the cause for the appellees/cross-appellants. Peter D. Keisler, Assistant Attorney General, Gregory D. Katsas and Jeffrey S. Bucholtz, Principal Deputy Associate Attorneys General, and Robert M. Loeb and Matthew M. Collette, Attorneys, United States Department of Justice, were on brief. R. Craig Lawrence, Assistant United States Attorney, entered an appearance.

Before: HENDERSON, RANDOLPH and BROWN, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

Separate concurring opinion filed by Circuit Judge BROWN.

KAREN LECRAFT HENDERSON, Circuit Judge:

Appellants Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed and Jamal Al-Harith (plaintiffs or detainees) sued former Secretary of Defense Donald Rumsfeld (Rumsfeld) and defendant military officers¹ (defendants) under the Alien Tort Statute (ATS), 28 U.S.C. § 1350, the Geneva Conventions, 6 U.S.T. 3316 and 6 U.S.T. 3516, the Fifth and Eighth Amendments to the United States Constitution and the Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb et seq., seeking damages for their alleged illegal detention and torture at the United States Naval Base at Guantanamo Bay, Cuba (Guantanamo). The defendants argued in district court that the ATS and Geneva Conventions claims were barred by the Federal Employees Liability Reform and Tort Compensation Act of 1988 (Westfall Act), Pub.L. No. 100-694, 102 Stat. 4563 (1988) (amending 28 U.S.C. §§ 2671, 2674, 2679) and that they were entitled to qualified immunity on the constitutional and RFRA claims. The district court agreed that the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2679 et seq., provided the exclusive remedy for the defendants' allegedly tortious conduct and thus granted the defendants' motion to dismiss the ATS and Geneva Conventions claims. Rasul v. Rumsfeld, 414 F.Supp.2d 26, 30-36 (D.D.C.2006). The district court also dismissed the constitutional claims, holding that the defendants were entitled to qualified immunity from suit. Id. at 41-44. It denied, however, the defendants' motion to dismiss the RFRA claim. Rasul v. Rumsfeld, 433 F.Supp.2d 58 (D.D.C.2006). The plaintiffs now appeal the dismissal of the ATS, Geneva Conventions and constitutional claims and the defendants appeal the denial of their motion to dismiss the RFRA claim. For the reasons set forth below, we affirm the district court's dismissal of the ATS, Geneva Conventions and constitutional claims and reverse its denial of the motion to dismiss the RFRA claim.

I.

The complaint alleges the following facts. Shafiq Rasul (Rasul), Asif Iqbal (Iqbal), Rhuhel Ahmed (Ahmed) and Jamal Al-Harith (Al-Harith) are citizens and residents of the United Kingdom. Compl. ¶ 1. Rasul, Iqbal and Ahmed allege that in October 2001 they traveled to Afghanistan from Pakistan to provide humanitarian relief. Id. ¶ 35. They claim that General Rashid Dostum, an Uzbek warlord allied with the United States as part of the Northern Alliance, captured them in northern Afghanistan on November 28, 2001 and transferred them to United States custody in Afghanistan one month later. Id. ¶¶ 2, 42-44. In early 2002, they were transported to Guantanamo, where they remained as detainees until their repatriation to the United Kingdom in 2004. Id. ¶¶ 5, 58-65.

Al-Harith asserts that he traveled to Pakistan on October 2, 2001 to attend a religious retreat. Id. ¶ 3. Upon being advised to leave the country because of reported animosity towards British citizens, Al-Harith alleges that he tried to return to Europe overland via Iran and Turkey. Id. According to Al-Harith, while still in Pakistan, the truck in which Al-Harith was traveling was hijacked at gunpoint by Afghans. Id. He claims he was then forced into another vehicle which crossed the border into Afghanistan where he was subsequently turned over to the Taliban. Id. Al-Harith asserts that the Taliban accused him of being a British spy and imprisoned him. Id. He claims he was released in 2001 when the Taliban fell and he contacted British embassy officials to secure his evacuation. Id. United States forces, in coordination with British officials, detained Al-Harith and transported him to Guantanamo in February 2002. Id. ¶¶ 3-4, 63.

On December 2, 2002, defendant Rumsfeld approved for use at Guantanamo interrogation techniques such as the use of stress positions, intimidation by the use of dogs, twenty-hour interrogation sessions, shaving of detainees' facial hair, isolation in darkness and silence and the use of "mild non-injurious physical contact." Id. ¶ 9. Rumsfeld subsequently withdrew approval of these tactics in April 2003. Id. ¶ 11. The detainees, however, allege that they were systematically and repeatedly tortured throughout their two-year detention at Guantanamo. Id. ¶ 4. For example, they claim they were beaten, shackled in painful stress positions, threatened by dogs, subjected to extreme temperatures and deprived of adequate sleep, food, sanitation, medical care and communication. Id. ¶ 6. They also allege that they were harassed while practicing their religion, id., including forced shaving of their beards, banning or interrupting their prayers, denying them copies of the Koran and prayer mats and throwing a copy of the Koran in a toilet bucket. Id. ¶¶ 58, 78, 92, 97, 206.

In addition to Rumsfeld's approval of these interrogation techniques, the detainees assert that the other defendants implemented, supervised and condoned their torture and detention. See id. ¶ 154 ("[A]ll [d]efendants were aware that [p]laintiffs were tortured . . . ."); id. ¶ 155 ("[A]ll [d]efendants took no steps to prevent the infliction of torture . . . ."); id ¶ 156 ("[A]ll [d]efendants authorized and encouraged the infliction of torture. . . ."). For example, plaintiffs allege that defendant Myers, a United States Air Force General and Chairman of the Joint Chiefs of Staff, was informed of the torture and mistreatment of Guantanamo detainees and, as the senior military officer charged with maintaining the custody of the detainees, condoned their torture. Id. ¶ 20. They assert that defendant Miller, a Major General in the United States Army, implemented and condoned the torture and mistreatment of Guantanamo detainees as the Commander of Joint Task Force-GTMO. Id. ¶ 21. They claim that defendant Hill, a General in the United States Army and Commander of the United States Southern Command, sought approval for several abusive interrogation techniques used on them. Id. ¶ 22. They allege that defendant Dunlavey, a Major General in the United States Army, implemented and condoned torture and cruel, inhuman and degrading acts as the Commander of Joint Task Force 160/170, which succeeded Joint Task Force-GTMO at Guantanamo. Id. ¶ 23. They assert that defendant Hood, a Brigadier General in the United States Army, operated the detention facilities at Guantanamo and had supervisory responsibility for the detainees as the Commander of Joint Task Force-GTMO. Id. ¶ 24. They claim that defendant Lehnert, a Brigadier General in the United States Marine Corps, was responsible for the construction and operation of Camp X-Ray and Camp Delta at Guantanamo and had supervisory responsibility for detainees. Id. ¶ 25. They allege that defendant Cannon, a Colonel in the United States Army, had supervisory responsibility for the detainees as Commander of Camp Delta at Guantanamo. Id. ¶ 26. They assert that defendant Carrico, also a Colonel in the United States Army, had supervisory responsibility for the detainees as Commander of Camp Delta and Camp X-Ray at Guantanamo. Id. ¶ 27. Finally, they claim that defendant Beaver, a Lieutenant Colonel in the United States Army and Chief Legal Adviser to defendant Dunlavey, provided an opinion purporting to justify the torture and mistreatment of detainees. Id. ¶ 28.

The plaintiffs were released in March 2004 and returned to the United Kingdom. Id. ¶ 5. On October 27, 2004, they filed a complaint alleging seven causes of action against defendant Rumsfeld and the defendant military officers: (1) prolonged arbitrary detention under the ATS, (2) torture under the ATS, (3) cruel, inhuman or degrading treatment under the ATS, (4) violations of the Geneva Conventions, (5) violations of the Eighth Amendment, (6) violations of the Fifth Amendment and (7) violations of RFRA. Compl. ¶¶ 159-210. They claim they suffered physical and psychological trauma as a result of their detention at Guantanamo. Id. ¶¶ 138-140. On March 16, 2005, all of the defendants moved to dismiss for lack of subject matter jurisdiction and failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6). Rasul, 414 F.Supp.2d at 29.

The district court dismissed the ATS, Geneva Conventions and...